This is a federal criminal case where the government attempted to introduce evidence obtained through the Foreign Intelligence Surveillance Act (FISA). On August 14, 2018, two operators of a Detroit gas station were indicted in the United States District Court for the Eastern District of Michigan for the crime of defrauding the Supplemental Nutrition Assistance Program (SNAP). The defendants allegedly bought SNAP funds from recipients with cash at a discounted price, then fraudulently billed the government for the total value. They were charged with 14 counts of wire fraud (18 U.S.C. § 1343). The case was assigned to United States District Judge Nancy G. Edmunds. On September 12, 2018, the U.S. Department of Justice notified the criminal defendants in this case that some of the evidence the government intended to use against them was obtained from a FISA warrant obtained under 50 U.S.C. §§ 1801-1812.

Both men were released on bail after their arraignment on August 16, 2018. One defendant, represented by a federal public defender, pleaded guilty to a single count of wire fraud on December 6, 2018, prior to filing any pretrial motions. He was sentenced to a year and a day in federal prison on April 18, 2019.

The other defendant, represented by private counsel, filed several pretrial motions relating to the FISA evidence. On February 8, 2019, he moved for discovery of the evidence obtained under FISA, as well as the application and order that allowed the government to collect it.

The government opposed this motion. On June 6, 2019, it filed a declaration from Attorney General William P. Barr claiming that an adversarial hearing would endanger national security and asking the court to conduct an ex parte and in camera review of the relevant documents. This process is set out in 50 U.S.C. §§ 1806(f) and 1825(g).

Later on September 19, 2019, the defendant moved to dismiss the indictment against him, claiming that the use of FISA material in this prosecution was improper because he was charged with a domestic criminal offense with no relationship to the normal subjects of FISA: foreign powers or their agents.

Judge Edmunds denied both of the defendants' motions in a December 24, 2020 order. After reviewing the FISA warrant and application materials ex parte and in camera she found that they complied with the relevant statutory standards. In denying the defendant's motion to dismiss, she also found that FISA materials could be used in cases without a national security connection when the original surveillance was designed to obtain foreign intelligence information. 2020 WL 7664789.

As of March 3, 2021, the remaining defendant's case is set for trial on April 13, 2021.

Jonah Hudson-Erdman - 03/03/2021


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